Last month, the Sixth Circuit expanded its earlier
prohibition against the contractual shortening of limitations periods from
Title VII claims to cover the ADA and the ADEA as well, but agreed that the
contract would still apply to shorten the limitations periods applying to
ERISA, §1981 and Ohio Civil Rights Act claims. Thompson
v. Fresh Products LLC, No. 20-3060
(6th Cir. Jan. 15, 2021). In addition, the Court affirmed the employer’s
summary judgment on the employee’s discrimination and failure to accommodate claims
on the grounds that she failed to show that she was singled out for the RIF on
account of her race, age or disability and because being able to work a full
shift on the assembly line was an essential function of her job. Among other things, her sample sizes were too
small to provide a meaningful statistical analysis.
According to the Court’s decision the Plaintiff was hired in
July 2016, worked the third shift and was one of the company’s most productive
employees on the assembly line. Upon
being hired, she signed an Employee Handbook Acknowledgment which shortened the
time period for suing the employer to six months, or such reasonable time if a
court later found six months to be too short. In October, she requested to work part-time
on account of arthritis in her back.
While her supervisor agreed to look into it, no one responded to her
request. Later, the company realized that
it needed to reduce its workforce and requested which staff would agree to work
10-hour shifts instead of 8-hour shifts.
Plaintiff was the only employee who did not agree to work a 10-hour
shift (due to child care responsibilities) and was ultimately laid off at the
end of January along with three other employees (and two others who had either
had indicated that they could or would no longer work).
The Plaintiff promptly filed OCRC and EEOC Charges under Title
VII, the ADA and the ADEA. She filed
suit within 90 days after her Charge was dismissed. The trial court granted summary judgment to
the employer and the Sixth Circuit affirmed that she failed to satisfy her prima facie burden of proof.
The first issue involved whether her lawsuit was timely when
it was filed more than six months after she was laid off. The Court agreed that the Employee Handbook
Acknowledgement barred her OCRA claims under Ohio law. However, it found that the limitations
periods for claims under Title VII, the ADA and the ADEA were substantive
statutory rights which could not be limited by contract, especially considering
the national policy in favor of a uniform limitations period. (Of course, never mind that the limitations
period to file a Charge is not uniform). Accordingly, it found her federal claims to be
timely.
The Court rejected her failure to accommodate claim because
her request to work part-time was unreasonable and because the Sixth Circuit
does not recognize an independent cause of action for an employer’s failure to
engage in the interactive process. While
the duty to engage in the interactive process is mandatory, “failure to engage
in the interactive process does not give rise to an independent claim.” She failed to carry her burden of proving
that her requested accommodation was objectively reasonable. No other employee was permitted to work
part-time on that production line and the Court refused to consider the fact
that the employer permitted one employee to work part-time in a different
department under different working conditions.
It also did not discuss the employer’s obligation to discuss potential
transfers to a different position.
Although the handbook does not state that employees must work full time, it states that production workers must be able to work 10–12 hours at a time—at least the length of a full shift. Shaferly testified that Fresh Products does not have part-time production workers because it is too difficult to manage with the amount of turnover at the company, and Hartman testified that it would be very difficult to have someone leave in the middle of a shift because it would require “figur[ing] out how to move someone else to take their spot” or “cover [their] machine.”
The Court also rejected her discrimination claim because she
could not show that she was singled out for the RIF on account of her
disability in light of her admission that she had never indicated a willingness
or ability to work the 10-hour shifts.
Indeed, she “was the only employee who stated she could not work either
shift, never selected a preference for one of the shifts when Shaferly followed
up after the survey, and did not voluntarily quit.”
The Court rejected the argument that she could not prove
that she had a disability because she did not have any lifting restrictions
imposed by her physician after she had been hired and had continued to work
full-time until she was laid off because she had such medical restrictions
imposed while working at a prior employer. The Court also rejected the argument that she
was unqualified for her position because she was unwilling to work 10-hour
shifts because of the ambiguity in the employer’s request in seeking “preferences”
instead of willingness or ability.
The Court also found that she could not prove that she was
singled out for the RIF on account of her age.
Only five employees were laid off and all of them were over the age of
40. However, two of them were not
comparable because one volunteered for the RIF and the other announced that she
had to leave on February 1 (to go to jail).
The other two employees had admittedly poor production records. When the Plaintiff pointed to the retention
of a younger female, the Court pointed out that there was no evidence that that
the comparator was less qualified than Plaintiff. When the Plaintiff pointed to one young
employee who was retained even though he had poor production and attendance
compared to her, the Court pointed out that:
The probative value of this evidence in the age-discrimination context is undermined by the fact that, according to the final list of those considered for layoff (excluding those who quit or were terminated for cause before the layoff), half of the other employees who had lower production numbers or higher absenteeism than Thompson and were retained were members of the protected class (i.e., forty or older), and two were older than Thompson at the time of the RIF. This evidence does not tend to show that Thompson was singled out because of her age.
The Court also rejected her statistical “evidence” that she
was singled out for the RIF on account of her race.
[W]ith the exception of [the employee] who informed Fresh Products that she would be incarcerated, the five employees terminated as part of the RIF were all black, Hispanic, or biracial; and 2) of the 18 people considered for layoff, 78% were black. These statistics suffer from the same shortcomings as those provided in support of Thompson’s ADEA claim: the sample sizes are too small to be reliable, and Thompson has failed to provide any analysis of the statistics’ significance. They also do not address a comparison to the relevant pool: roughly 70% of Fresh Products’ employees are black, Hispanic, or biracial.
When the Plaintiff identified a white employee who was
retained with poorer production and attendance that her, the Court pointed out
that:
[O]f the ten employees with lower productivity or higher absenteeism than Thompson who were considered for layoff but retained, only [that employee] and one other employee . . . are white. Six are black, and one is biracial. In light of this context, Fresh Products’ retention of [that employee] does not tend to indicate that Thompson was laid off because of her race.
The dissenting judge would have found a factual dispute as
to pretext when a non-disabled employee who had requested to work part-time to
accommodate her class scheduled was retained even though that employee had also
– unlike the Plaintiff – initially agreed to work a 10-hour shift before
resigning.
NOTICE: This summary is designed merely to inform and alert
you of recent legal developments. It does not constitute legal advice and does
not apply to any particular situation because different facts could lead to
different results. Information here can change or be amended without notice.
Readers should not act upon this information without legal advice. If you have
any questions about anything you have read, you should consult with or retain
an employment attorney.
